SENATE BILL No. 649 AMENDED IN SENATE MAY 2, 2017 AMENDED IN SENATE MARCH 28, 2017

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1 AMENDED IN SENATE MAY 2, 2017 AMENDED IN SENATE MARCH 28, 2017 SENATE BILL No. 649 Introduced by Senator Hueso (Principal coauthor: Assembly Member Quirk) (Coauthor: Senator Dodd) February 17, 2017 An act to amend Section of, and to add Section to, the Government Code, relating to telecommunications. legislative counsel s digest SB 649, as amended, Hueso. Wireless telecommunications facilities. Under existing law, a wireless telecommunications collocation facility, as specified, is subject to a city or county discretionary permit and is required to comply with specified criteria, but a collocation facility, which is the placement or installation of wireless facilities, including antennas and related equipment, on or immediately adjacent to that wireless telecommunications collocation facility, is a permitted use not subject to a city or county discretionary permit. This bill would provide that a small cell is a permitted use, not subject only to a specified permitting process adopted by a city or county discretionary permit, county, if the small cell meets specified requirements. By imposing new duties on local agencies, this bill would impose a state-mandated local program. The bill would authorize a city or county to require an administrative permit encroachment permit or a building permit, and any additional ministerial permits, for a small cell, as specified. The bill would define the term small cell for these purposes. Page 1 of 8

2 Under existing law, a city or county, as a condition of approval of an application for a permit for construction or reconstruction of a development project for a wireless telecommunications facility, may not require an escrow deposit for removal of a wireless telecommunications facility or any component thereof, unreasonably limit the duration of any permit for a wireless telecommunications facility, or require that all wireless telecommunications facilities be limited to sites owned by particular parties within the jurisdiction of the city or county, as specified. This bill would require permits for these facilities to be renewed for equivalent durations, as specified. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. The people of the State of California do enact as follows: line 1 SECTION 1. The Legislature finds and declares that, to ensure line 2 that communities across the state have access to the most advanced line 3 wireless communications technologies and the transformative line 4 solutions that robust wireless connectivity enables, such as Smart line 5 Communities and the Internet of Things, California should work line 6 in coordination with federal, state, and local officials to create a line 7 statewide framework for the deployment of advanced wireless line 8 communications infrastructure in California that does all of the line 9 following: line 10 (a) Reaffirms local governments historic role and authority line 11 with respect to wireless communications infrastructure siting and line 12 construction generally. line 13 (b) Reaffirms that deployment of telecommunications facilities line 14 in the rights-of-way is a matter of statewide concern, subject to a line 15 statewide franchise, and that expeditious deployment of line 16 telecommunications networks generally is a matter of both line 17 statewide and national concern. line 18 (c) Recognizes that the impact on local interests from individual line 19 small wireless facilities will be sufficiently minor and that such 2 Page 2 of 8

3 line 1 deployments should be a permitted use statewide and should not line 2 be subject to discretionary zoning review. line 3 (d) Requires expiring permits for these facilities to be renewed line 4 so long as the site maintains compliance with use conditions line 5 adopted at the time the site was originally approved. line 6 (e) Requires providers to obtain all applicable building or line 7 encroachment permits and comply with all related health, safety, line 8 and objective aesthetic requirements for small wireless facility line 9 deployments on a ministerial basis. line 10 (f) Grants providers fair, reasonable, nondiscriminatory, and line 11 nonexclusive access to locally owned utility poles, street lights, line 12 streetlights, and other suitable host infrastructure located within line 13 the public right-of-way and in other local public places such as line 14 stadiums, parks, campuses, hospitals, transit stations, and public line 15 buildings consistent with all applicable health and safety line 16 requirements, including Public Utilities Commission General Order line line 18 (g) Provides for full recovery by local governments of the costs line 19 of attaching small wireless facilities to utility poles, street lights, line 20 streetlights, and other suitable host infrastructure in a manner that line 21 is consistent with existing federal and state laws governing utility line 22 pole attachments generally. line 23 (h) Permits local governments to charge wireless permit fees line 24 that are fair, reasonable, nondiscriminatory, and cost based. line 25 (i) Advances technological and competitive neutrality while not line 26 adding new requirements on competing providers that do not exist line 27 today. line 28 SEC. 2. Section of the Government Code is amended line 29 to read: line As a condition of approval of an application for a permit line 31 for construction or reconstruction for a development project for a line 32 wireless telecommunications facility, as defined in Section , line 33 a city or county shall not do any of the following: line 34 (a) Require an escrow deposit for removal of a wireless line 35 telecommunications facility or any component thereof. However, line 36 a performance bond or other surety or another form of security line 37 may be required, so long as the amount of the bond security is line 38 rationally related to the cost of removal. In establishing the amount line 39 of the security, the city or county shall take into consideration 3 Page 3 of 8

4 line 1 information provided by the permit applicant regarding the cost line 2 of removal. line 3 (b) Unreasonably limit the duration of any permit for a wireless line 4 telecommunications facility. Limits of less than 10 years are line 5 presumed to be unreasonable absent public safety reasons or line 6 substantial land use reasons. However, cities and counties may line 7 establish a build-out period for a site. A permit shall be renewed line 8 for an equivalent duration unless the city or county makes a finding line 9 that the wireless telecommunications facility does not comply with line 10 the codes and permit conditions applicable at the time the permit line 11 was initially approved. line 12 (c) Require that all wireless telecommunications facilities be line 13 limited to sites owned by particular parties within the jurisdiction line 14 of the city or county. line 15 SEC. 3. Section is added to the Government Code, to line 16 read: line (a) A small cell shall be a permitted use not subject line 18 only to a permitting process adopted by a city or county line 19 discretionary permit pursuant to subdivision (b) if it satisfies the line 20 following requirements: line 21 (1) The small cell is located in the public right-of-way in any line 22 zone or in any zone that includes a commercial or industrial use. line 23 (2) The small cell complies with all applicable state federal, line 24 state, and local health and safety regulations. regulations, including line 25 compliance with the federal Americans with Disabilities Act of line (42 U.S.C. Sec et seq.). line 27 (3) The small cell is not located on a fire department facility. line 28 (b) (1) A city or county may require that the small cell be line 29 approved pursuant to a single administrative permit a building line 30 permit or its functional equivalent in connection with placement line 31 outside of the public right-of-way or an encroachment permit or line 32 its functional equivalent issued consistent with Sections 7901 and line of the Public Utilities Code for the placement in public line 34 rights-of-way, and any additional ministerial permits, provided line 35 that the permit is all permits are issued within the time frames line 36 timeframes required by state and federal law. line 37 (2) An administrative permit Permits issued pursuant to this line 38 subdivision may be subject to the following: line 39 (A) The same administrative permit requirements as for similar line 40 construction projects and applied in a nondiscriminatory manner. 4 Page 4 of 8

5 line 1 (B) The submission of A requirement to submit additional line 2 information showing that the small cell complies with the Federal line 3 Communications Commission s regulations concerning radio line 4 frequency emissions referenced in Section 332(c)(7)(B)(iv) of line 5 Title 47 of the United States Code. line 6 (C) A condition that the applicable permit may be rescinded if line 7 construction is not substantially commenced within one year. line 8 Absent a showing of good cause, an applicant under this section line 9 may not renew the permit or resubmit an application to develop line 10 a small cell at the same location within six months of recision. line 11 (D) A condition that small cells no longer used to provide line 12 service shall be removed at no cost to the city or county. line 13 (E) Compliance with building codes, including building code line 14 structural requirements. line 15 (F) A condition that the applicant pay all electricity costs line 16 associated with the operation of the small cell. line 17 (G) A condition to comply with feasible design and collocation line 18 standards on a small cell to be installed on property not in the line 19 right-of-way. line 20 (3) The administrative permit Permits issued pursuant to this line 21 subdivision shall not be subject to: line 22 (A) Requirements to provide additional services, directly or line 23 indirectly, including, but not limited to, in-kind contributions from line 24 the applicant such as reserving fiber, conduit, or pole space. line 25 (B) The submission of any additional information other than line 26 that required of similar construction projects, except as specifically line 27 provided in this section. line 28 (C) Limitations on routine maintenance or the replacement of line 29 small cells with small cells that are substantially similar, the same line 30 size or smaller. line 31 (D) The regulation of any antennas micro wireless facilities line 32 mounted on cable strands. a span of wire. line 33 (c) A city or county shall not preclude the leasing or licensing line 34 of its vertical infrastructure located in public right-of-way or public line 35 utility easements under the terms set forth in this paragraph. line 36 Vertical infrastructure shall be made available for the placement line 37 of small cells under fair and reasonable fees, terms, and conditions line 38 and offered on a nondiscriminatory basis for small cells. Fees shall line 39 be cost-based, and shall not exceed the lesser of either of the line 40 following: conditions, which may include feasible design and 5 Page 5 of 8

6 line 1 collocation standards. A city or county may reserve capacity on line 2 vertical infrastructure if the city or county adopts a resolution line 3 finding, based on substantial evidence in the record, that the line 4 capacity is needed for projected city or county uses. Fees shall be line 5 tiered or flat and within a range of $100 to $850 per small cell line 6 per year, indexed for inflation from the effective date of this section. line 7 (1) The costs of ownership of the percentage of the volume of line 8 the capacity of the vertical infrastructure rendered unusable by a line 9 small cell. line 10 (2) The rate produced by applying the formula adopted by the line 11 Federal Communications Commission for telecommunications line 12 pole attachments in Section (e)(2) of Part 47 of the Code line 13 of Federal Regulations. line 14 (d) A city or county shall not unreasonably discriminate in the line 15 leasing or licensing of against the deployment of a small cell on line 16 property owned by the city or county and shall make space line 17 available on property not located in the public right-of-way owned line 18 or operated by the city or county for installation of a small cell. A line 19 city or county shall authorize the installation of a small cell on line 20 property owned or controlled by the city or county not located line 21 within the public right-of-way to the same extent the city or county line 22 permits access to that property for under terms and conditions that line 23 are no less favorable than the terms and conditions under which line 24 the space is made available for comparable commercial projects line 25 or uses. These installations shall be subject to reasonable and line 26 nondiscriminatory rates, terms, and conditions. conditions, which line 27 may include feasible design and collocation standards. line 28 (e) Nothing in this section shall be construed to alter, modify, line 29 or amend any franchise or franchise requirements under state or line 30 federal law. line 31 (e) line 32 (f) For purposes of this section, the following terms have the line 33 following meanings: line 34 (1) (A) Small cell means a wireless telecommunications line 35 facility, as defined in Section , using licensed or unlicensed line 36 spectrum that meets the following qualifications: line 37 (i) Any individual antenna, All antennas on the structure, line 38 excluding the associated equipment, is individually no more than line 39 three cubic feet in volume, and all antennas on the structure total 6 Page 6 of 8

7 line 1 no more than six cubic feet in volume, whether in a single array line 2 or separate. line 3 (ii) (I) The associated equipment on pole structures does not line 4 exceed 21 cubic feet for poles that can support fewer than three line 5 providers or 28 cubic feet for pole collocations that can support at line 6 least three providers, or the associated equipment on nonpole line 7 structures does not exceed 28 cubic feet for collocations that can line 8 support fewer than three providers or 35 cubic feet for collocations line 9 that can support at least three providers. provided that any line 10 individual piece of associated equipment or pole structures do not line 11 exceed nine cubic feet. line 12 (II) The following types of associated ancillary equipment are line 13 not included in the calculation of equipment volume: line 14 (ia) Electric meters and any required pedestal. line 15 (ib) Concealment elements. line 16 (ic) Any telecommunications demarcation box. line 17 (id) Grounding equipment. line 18 (ie) Power transfer switch. line 19 (if) Cut-off Cutoff switch. line 20 (ig) Vertical cable runs for the connection of power and other line 21 services. line 22 (B) Small cell includes a micro wireless facility that is no line 23 larger than 24 inches long, 15 inches in width, 12 inches in height, line 24 and that has an exterior antenna, if any, no longer than 11 inches. line 25 (B) line 26 (C) Small cell does not include communications infrastructure line 27 extending beyond the telecommunications demarcation box. either line 28 of the following: line 29 (i) Coaxial or fiber optic cables that do not exclusively provide line 30 service to that small cell. line 31 (ii) Wireless facilities placed in any historic district listed in line 32 the National Park Service Certified State or Local Historic line 33 Districts or in any historical district listed on the California line 34 Register of Historical Resources or placed in coastal zones subject line 35 to the jurisdiction of the California Coastal Commission. line 36 (2) (A) Vertical infrastructure means all poles or similar line 37 facilities owned or controlled by a city or county that are in the line 38 public right-of-way or public utility easements and meant for, or line 39 used in whole or in part for, communications service, electric line 40 service, lighting, traffic control, signage, or similar functions. 7 Page 7 of 8

8 line 1 (B) For purposes of this paragraph, the term controlled line 2 means having the right to allow subleases or sublicensing. A city line 3 or county may impose feasible design or collocation standards for line 4 small cells placed on vertical infrastructure, including the line 5 placement of associated equipment on the vertical infrastructure line 6 or the ground. line 7 (g) Existing agreements regarding the leasing or licensing of line 8 vertical infrastructure entered into prior to the effective date of line 9 this section remain in effect, subject to applicable termination line 10 provisions. The operator of a small cell may accept the rates of line 11 this section for small cells that are the subject of an application line 12 submitted after the agreement is terminated pursuant to the terms line 13 of the agreement. line 14 (h) Nothing in this section shall be construed to impose an line 15 obligation to charge a use fee different than those authorized by line 16 Part 2 (commencing with Section 9510) of Division 4.8 of the line 17 Public Utilities Code on a local publicly owned electric utility. line 18 (f) line 19 (i) The Legislature finds and declares that small cells, as defined line 20 in this section, have a significant economic impact in California line 21 and are not a municipal affair as that term is used in Section 5 of line 22 Article XI of the California Constitution, but are a matter of line 23 statewide concern. line 24 SEC. 4. No reimbursement is required by this act pursuant to line 25 Section 6 of Article XIIIB of the California Constitution because line 26 a local agency or school district has the authority to levy service line 27 charges, fees, or assessments sufficient to pay for the program or line 28 level of service mandated by this act, within the meaning of Section line of the Government Code. 8 O Page 8 of 8